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UNITED STATES v. 0.16 OF AN ACRE

July 6, 1981

UNITED STATES of America, Plaintiff,
v.
0.16 OF AN ACRE OF LAND, MORE OR LESS, SITUATED IN the COUNTY OF SUFFOLK, STATE OF NEW YORK, and Frederick Rose, State of New York, County of Suffolk, Suffolk County Real Property Tax Services, Thurman B. Givan and Crispin Cooke, d/b/a North Shore Medical Group, William Peio, Smithhaven Holding Corp., and Unknown Others, Defendants



The opinion of the court was delivered by: NICKERSON

AMENDED MEMORANDUM AND ORDER

On July 9, 1979, plaintiff United States of America brought this action to condemn a certain parcel of land. Pursuant to the Declaration of Taking Act, 40 U.S.C. § 258a, a declaration of taking was filed, an estimated just compensation of $ 20,000 was deposited with the court, and title vested in the United States. By order of this court dated July 9, 1979 the United States was awarded immediate possession, and just compensation to those entitled to it was ordered to be ascertained and awarded in accordance with established procedures.

Defendant Frederick Rose, who had received notice of the taking, filed an answer raising multiple objections to the condemnation. The United States moves to strike those objections and for summary judgment.

 The following facts are undisputed. In May of 1977, Rose bought a plot of land located on the westernmost part of Davis Park in the Town of Brookhaven, Suffolk County, New York. Davis Park is within the boundaries of the Fire Island National Seashore. On the plot's northern border is Great South Bay and on the west is undeveloped federal land. The plot contained a house built prior to the creation of the National Seashore.

 In 1977 Rose applied to the Town Zoning Board for a variance from the minimum plot area and yard setback requirements of the applicable zoning ordinances and for a building permit. He proposed to subdivide the plot and construct an additional residence on a portion fronting the Bay. The Superintendent of the Seashore sent a letter on August 11, 1977, to the Board making objections to the granting of the variance. Nevertheless, on February 15, 1978 the variance and building permit were granted. In a July 6, 1978 letter the Superintendent told Rose of the National Park Service's continuing objections.

 In April 1979 Rose commenced construction of a residence on the subdivided parcel of 0.16 acres. Pursuant to authority from Congress the Secretary of the Interior instituted this proceeding to condemn the subdivided parcel. The remainder of the original parcel, on which the original house stands, remains in Rose's possession.

 Rose's answer asserts eleven objections to the taking. These allege, with considerable duplication, that the taking 1) is not authorized by the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq., 2) was arbitrary and capricious and in bad faith, 3) violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and 4) violated defendant's right to due process under the Fifth Amendment. Defendant thereafter also claimed that the taking violated the Tenth Amendment. These allegations will be discussed seriatim.

 I. Statutory Authority

 On September 11, 1964 Congress passed the Fire Island National Seashore Act, 16 U.S.C. § 459e et seq., establishing the Fire Island National Seashore. The Act recites that its purpose is to conserve and preserve, "for the use of future generations certain relatively unspoiled and undeveloped beaches, dunes, and other natural features" on and near that island. 16 U.S.C. § 459e(a). The Act further provides that:

 
The Secretary is authorized to acquire, and it is the intent of Congress that he shall acquire as appropriated funds become available for the purpose ... the lands, waters, and other property, and improvements thereon and any interest therein, within the boundaries of the seashore ....

 16 U.S.C. § 459e-1(a).

 The only limits on the Secretary's authority to carry out this mandate by condemning private property within the boundaries of the National Seashore are, so far as relevant here, as follows:

 
With one exception (not pertinent here) the Secretary shall not acquire any privately owned improved property or interests therein within the boundaries of the seashore or any property or interests therein within the communities delineated on the boundary map (of which the Davis Park is one) ..., except beach or waters and adjoining land within such communities which the Secretary determines are needed for public access to the beach, without the consent of the owners so long as the appropriate local zoning agency shall have in force and applicable to such property a duly adopted, valid, zoning ordinance that is satisfactory to the Secretary.

 16 U.S.C. § 459e-1(e). This suspension of the authority of the Secretary to acquire by condemnation ceases automatically under the circumstances set forth in 16 U.S.C. § ...


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